Exclusion of Jews as Jurors Is Seen

By GEORGE JAMES

Published: October 27, 1988

A State Supreme Court Justice in Queens Tuesday accused a prosecutor in a drug case of systematically excluding jurors with Jewish surnames because of a notion they would be too liberal, and sympathetic to the defendant. The prosecutor denied deliberately excluding Jews as jurors. The unusual incident set off a series of exchanges that ended with the judge declaring a mistrial in front of the jury after the prosecutor refused to proceed because some jurors had been empanelled over his objections.

But when Justice Herbert Posner of Supreme Court in Jamaica then tried to empanel a new jury, the defense lawyer objected that his client was being tried twice for the same crime.

And when the judge replied that he would rule on that motion after the trial is over, the the defense lawyer, Marvyn Kornberg, obtained a temporary restraining order yesterday preventing any new trial until the State Appellate Division in Brooklyn rules on his motion to dismiss on double-jeopardy grounds. A hearing on that motion will be held Nov. 4. Challenges Now Limited

The practice of excluding prospective jurors by using peremptory challenges - those for which a prosecutor or defense attorney is not required to cite a reason- has been limited by the United States Supreme Court. The court ruled two years ago, in a case involving the exclusion of black jurors, that prosecutors may not systematically exclude people from a jury on the basis of race.

The defendant, Sylvestro Mortillaro, 28 years old, of Glendale, is charged with selling $100 worth of PCP, or angel dust, to an undercover officer on March 23.

After the prosecutor had challenged the 12th prospective juror, a woman named Carol Gross, the defense attorney objected that every juror with ''either a Jewish or Hebraic last name has been challenged.''

The judge agreed that the prosecutor, Steven Zissou, had ''knocked off every single person with a Jewish surname, about six or seven of them.'' 'She Is a Teacher'

If he had done so, Mr. Zissou said, it was completely unintentional.

Asked why he excluded one juror with a Jewish surname, Mr. Zissou, answered, ''She is a teacher and I don't like teachers on juries.''

Although Mr. Zissou had accepted a principal, he said he thought principals, because of their administrative responsibilities, ''are less liberal and less emotional.''

Later, Justice Posner said: ''You are full of baloney, Mr. Zissou. You are being obstinate.''

He then declared a mistrial ''on the basis of prosecutorial misconduct for the deliberate filing of objections to every single Jewish person on the panel and every single teacher.''

Mr. Zissou objected, saying he had not limited his challenges to people with Jewish names. 'My Daughter is Half-Jewish'

''My daughter is half-Jewish.'' he said. ''I'm not the least bit ethnically prejudiced in any way.''

The judge replied: ''You may not be, outside of picking a jury. I am not saying you're an anti-Semite.''

He continued: ''I think what you've done here today is you made a decision in your mind that all the Jewish teachers and all the people with Jewish names are automatically too liberal and therefore they are going to find reasonable doubt and they are going to acquit him.''

Mr. Zissou said he would be happy to see a new jury empaneled.

But Mr. Kornberg said to do so would be unfair to the defense, which had accepted the jury.

In the afternoon, Justice Posner seated the jury and asked Mr. Zissou to make his opening statement. Mr. Zissou refused. At that, the judge dismissed the jury and ordered a new one empanelled. The defense attorney then filed a motion contending his client was being tried twice for the same crime.

The judge said he would reserve decision on that motion until after a second trial.

But Mr. Kornberg objected, saying: ''That's the worst thing you could do to the defendant. You don't give him the opportunity to prevent the second trial. You make him be the one who is appealing and it is the People who willfully refuse Your Honor's order.''

Justice Posner scheduled a hearing for today in which Mr. Zissou will be asked for the record to explain why he excluded jurors, who will be present in the court.

Richard Piperno, a spokesman for the Queens District Attorney, John J. Santucci, declined comment, except to say, ''I absolutely reject the notion that this assistant district attorney engaged in any anti-Semitic act.''